The petticoats of people who have been using Ramos and Compean to further their own agendas, whether it be border security, illegals, brown people, the new world order, the illuminati or just plain get George Bush, are starting to fray. And you have been at the head of the pack. For over a year you and a few others have been wailing and gnashing your teeth over the horrible treatment of R&C and not once have you asked Hunter or others why they don’t simply pass legislation to correct and clarify this law regarding LEO’s.
Because when your agenda is politics or propaganda killing the golden goose is dumb. Which is sad because Ramos and Compean rot in prison while you play your PR games.
So don’t come in here and shed your crocodile tears over them, because their welfare is farthest from your mind.
Olson and Brewer lay out what kind of malfeasance Sutton's office committed. First, as they point out, Sutton deliberately changed the wording of the statute in order to prosecute the agents :
" A. Each of Counts Four and Five of the Indictment Contains an Erroneous Allegation of the Offense Defined in 18 U.S.C. Section 924(c)(1)(A).In McGilberry, this Court ruled that, in order to charge a crime under 18 U.S.C. Section 924(c)(1)(A), an indictment must allege that a defendant either has “use[d] or carrie[d] a firearm ... during and in relation to any [crime of violence]” or has “possess[ed] a firearm” “in furtherance of” such a crime. McGilberry, 480 F.3d at 329 (emphasis added). Conspicuously absent from this ruling is any mention that an indictment charging a violation of 18 U.S.C. Section 924(c)(1)(A) would be sufficient if it alleged that a defendant “discharged”a firearm during and in relation to a crime of violence, such as was alleged in Counts Four and Five of the indictment in this case.
Indeed, six years before McGilberry, this Court ruled that “discharging a firearm during and in relation to a crime of violence” was not an “actus reus” element of the offense defined by 18 U.S.C. Section 924(c)(1)(A), but only a “sentencing factor.” See United States v. Barton, 257 F.3d 433, 441-43 (5th Cir. 2001).
One year after Barton, the Supreme Court affirmed this 5th Circuit rule, concluding that 18 U.S.C. Section 924(c)(1)(A) defines a “single crime,” namely, the use or carrying of a firearm during and in relation to a crime of violence or the possession of a firearm in furtherance of such a crime. See Harris v. United States, 536 U.S. 545, 550-53 (2002).
In Harris, the Supreme Court determined that 18 U.S.C. Section 924(c)(1)(A)(iii), which referred to the discharge of a firearm, did not define a separate offense. Rather, it ruled that subsection (iii), like its companions (i) and (ii), identified only certain “sentencing factors” to be considered by the trial judge after conviction of the offense that is fully defined in the paragraph immediately preceding subsection (i). Id., 536 U.S. at 552-54.
Sutton deliberately misstated the statute to the Grand Jury to obtain indictments :
"In disregard of these definitive rulings, the prosecution in this case obtained from the Grand Jury an indictment setting forth Counts Four and Five, which charged Defendants with the crime of having “knowingly discharged a firearm ... during and in relation to a crime of violence....” Document No. 66, p. 3, 1R-119-126 (emphasis added).Having misstated the crime defined by 18 U.S.C. Section 924(c)(1)(A), Counts Four and Five failed to charge either Defendant with any criminal offense whatsoever. See McGilberry, 480 F.3d at 329 and Barton, 257 F.3d at 443."
Olson and Brewer elaborate further :
"B. The Misdescription in Counts Four and Five of the Offense Defined in 18 U.S.C. Section 924(c)(1)(A) Was Plainly Erroneous.Even before the United States Supreme Court decided Harris, and years prior to the indictment and trial of Defendants Ramos and Compean, this Circuit ruled that the “discharge” of a firearm was neither an element of the offense defined by 18 U.S.C. Section 924(c)(1)(A) nor a separate offense defined by 18 U.S.C. Section 924(c)(1)(A)(iii), but was only a sentencing factor. See United States v. Barton, 257 F.3d 433, 441-43 (5th Cir. 2001).
Notwithstanding those pertinent precedents, the prosecution in this case erased that well-established distinction, substituting “discharge” for one of the statutorily-identified actus reus elements — use, carry, and possess. As was true in McGilberry, where the prosecution “erroneously combined the ‘possession’ prong of the statute with the ‘during and in relation to’ prong,” it was “plain error” for the prosecution to combine the “during and in relation to” prong with the “discharge” factor, thereby creating a purported criminal offense never enacted into law by Congress. See McGilberry, 480 F.3d at 329-30."
Then Olson and Brewer show that the Court's instructions to the Jury were in error :
"Not only did the prosecution misdescribe in Counts Four and Five of the indictment the crime defined by 18 U.S.C. Section 924(c)(1)(A), the trial court misdirected the jury.
First, the court erroneously told the jury that “Title 18, United States Code, Section 924(c)(1), makes it a crime for anyone to discharge a firearm during and in relation to a crime of violence.” See Jury Instructions, pp. 27-28; 2R424-425 (emphasis added).
As pointed out in sections II. A. and B. above, that instruction to the jury is flatly contradicted by Harris, Barton, and McGilberry.
Second, having misdescribed the elements of the offense, the trial court erroneously directed the jury that “to find the defendant[s] guilty of this crime, you must be convinced that the government has proven ... beyond a reasonable doubt ... [t]hat the defendant[s] knowingly discharged a firearm during and in relation to one or more of the crimes charged in Count One, Two or Three.” Jury Instructions, pp. 28-29; 2R425-26 (emphasis added).
By this instruction, the trial court invited the jury to return a verdict of guilty not based any actus reus element of the offense defined in 18 U.S.C. Section 924(c)(1)(A), but on a mens rea element disconnected from any actus reus specified in the offense."
Here Olson and Brewer get to the real heart of the matter :
" And by instructing the jury that the offenses charged in Counts I, II, and III were “crimes of violence,” and that it only need to find that the “firearm” had “some purpose, role, or effect with respect to those crimes, the trial court deprived Defendants of their constitutional right to have the jury decide whether the Defendants’ “use” or “carrying” of the firearms was “during and in relation to” a “crime of violence” or “during and in relation to” their employment as Border Patrol Agents. See United States v. Martin Linen Supply Co., 430 U.S. 564, 572 (1977)"
Sorry about the length of this post. But these are critical arguments.
An argument can be made that the BP agents have yet to be charged with actually violating statute 924(c)(1)(A).